The Planning and Environment Court delivered a decision in the case of McConaghy Properties Pty Ltd v Townsville City Council & Anor  QPEC 11 which involved a submitter’s appeal against a decision of the Townsville City Council to approve a shopping complex and fast food outlet on land in Currajong, Townsville.
The proposed shopping complex and fast food outlet was “out-of-centre” development which was to be located on land owned and used by the Townsville District Rugby Union as sporting grounds for rugby union.
Significant conflicts of the proposed development with the Council’s City Plan 2005 and 2014 were asserted by McConaghy Properties which premised on its unacceptable adverse impacts on the centres network, open space network and traffic network.
The Court accepted that the proposed development was in significant conflict with the centres hierarchy and the open space strategies under both planning schemes, whilst finding that its impact on the transport planning strategies to be minor.
Given the significance of the identified conflicts, “very strong grounds” were required to overcome them.
Parkside relied on a number of grounds for approval which included the community benefits generated by the proposed development by enabling the relocation of the rugby club, the need for an additional full-line supermarket and the absence of unacceptable economic or amenity impacts.
However, the Court was not persuaded that the grounds were strong enough to overcome the identified conflicts and therefore allowed the appeal.
Proposed shopping complex and fast food outlet
Parkside sought to redevelop the land, which was owned and used by the Townsville District Rugby Union as sporting grounds for rugby union, for a shopping complex and fast food outlet.
Whilst the Council approved the proposed development, it took a neutral position in the appeal. McConaghy Properties which owned and operated a nearby shopping centre called “CastleTown” opposed the proposed development.
Out-of-centre development contrary to planning schemes
The land was included in the “Green Space Precinct” and “Community facilities and open spaces zone category (sport and recreation zone)” under the City Plan 2005 and 2014 respectively and the proposed development was therefore an “out-of-centre” development. In contrast, the CastleTown shopping centre was relevantly included in a “centre” zone or precinct under both planning schemes.
It was agreed by the town planning experts that “the centres hierarchy is a “central plank” or core policy position underpinning the planning and development of the city of Townsville.” Against that background, the Court gave consideration to both town planning experts’ observations on the role and function of centres in the centres hierarchy under both planning schemes.
The Court, accepting the evidence of McConaghy Properties’ town planning expert, found that the proposed development was plainly in conflict with the established centres hierarchy under both planning schemes.
It was also found that the proposed development would have a negative impact on retailers in CastleTown and its viability and future development. There was a likelihood that it would “unduly erode and prejudice the planned centres hierarchy strategy given the proposal’s size, location, overlap and function”.
As noted above, the land was included in zoning for open space and recreational purposes. Both planning schemes included clear intent to deter non-recreational or open space uses on land zoned for such purposes.
Further, there was evidence before the Court by the open space experts which indicated a deficit of land being able to be used for organised sporting activities. On this basis, it was found by the Court that the proposed development was in significant conflict with the open space strategies under both planning scheme.
McConaghy Properties submitted that the proposed development would have an adverse impact on the traffic network and the transport planning strategies under both planning schemes. Having considered the evidence of the traffic experts, the Court did not find the impact to be significant.
Strong grounds required to overcome the significant conflicts
In light of the identified conflicts, Parkside was required to satisfy the Court that there were sufficient grounds to overcome the conflicts.
Parkside submitted that the proposed development would meet the planning, community and economic need for an additional full-line supermarket, without unacceptable amenity or economic impacts.
It was also submitted that the zoning of the land had been “overtaken by events” and the proposed development would facilitate the relocation of the rugby club to an alternate site in circumstances where the existing facility was inadequate to meet the existing and future needs of its members, volunteers, supporters and their families.
The Court was of the view that a second full-line supermarket within CastleTown was not “far-fetched, fanciful” whilst noting the commercial and temporal uncertainty. It was accepted by the Court that there was a “modest” economic and community need but the planning need for an additional full-line supermarket within the defined catchment was considered to be weak.
Any amenity impacts caused by the proposed development would not warrant a refusal. However, as noted above, the Court did not accept that there were no economic impacts, particularly as they related to the existing retailers and CastleTown.
Finally, the Court did not accept that the zoning of the land had been overtaken by events given its zoning under the latest planning scheme and that it remained available for a number of sporting uses. As to the circumstances and unique opportunity for the relocation of the rugby club, it was held to be personal to the Townsville District Rugby Union which constituted “private economics” and was not a relevant ground for approval.
In the circumstances, the Court was not persuaded that there were sufficient grounds to overcome the significant conflicts as identified.
A public or community benefit in the public interest would ordinary constitute a ground for approval. However, where the benefit was personal to an individual and it was simply about convenience or private economics for the individual, it would not be a relevant ground of approval (See Brown v Moreton Shire Council  26 LGERA 310 at 313 and Hymix Australia Pty Ltd v Brisbane City Council & Ors  QPELR 645 at ).
It is a well-established position taken by the Court that its role is to determine whether an approval should be given for a particular use proposed on a particular site. It is not the function of the Court to determine whether a better site exists for a particular development (See Luke v Maroochy Shire Council (2003) QPELR 447 at ).